French Consulting Pty Ltd v Lawson Stuart Donald - [2011] NSWSC 584

Supreme Court

New South Wales

Medium Neutral Citation: French Consulting Pty Limited v Lawson Stuart Donald [2011] NSWSC 584
Hearing dates: 16 June 2011
Decision date: 16 June 2011
Before: Hallen AsJ
Decision:
1. It is not appropriate to proceed to hear the assessment of damages ex parte.
2. At the request of the Plaintiff, adjourn the matter to the Registrar's List on Wednesday, 7 December 2011.
3. Make no order as to the Plaintiff's costs of today, to the intent that it will bear its own costs.

Catchwords: First Defendant did not enter an appearance or file a defence to statement of claim - Judgment on issue of liability entered in favour of the Plaintiff, against the first Defendant, leaving assessment of damages sought against the first Defendant outstanding - No appearance by, or on behalf of, the first Defendant on trial for assessment of damages - Whether appropriate to hear assessment of damages claim pursuant to UCPR rule 29.7
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Anton Fabrications (NSW) Pty Ltd, Re; Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186
Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869
Cameron v Cole (1944) 68 CLR 571
Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd [2010] FCA 1223
Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216
Renegade Rigging Pty Ltd v Hanlon Nominees Pty Ltd [2010] VSC 385
Smirski v Macander [2010] NSWSC 929
Category: Principal judgment
Parties: French Consulting Pty Limited (Plaintiff)
Lawson Stuart Donald (Defendant)
Representation: Counsel:
Mr C R Savala (Sol) (Plaintiff)
No appearance by first Defendant
Solicitors:
Moray & Agnew (Plaintiff)
No appearance by first Defendant

File Number(s): 2009/287373

Judgment - Ex Tempore

Nature of proceedings

The Plaintiff, at all relevant times, carried on the business of an investor. It commenced proceedings against five Defendants, in respect of only the first, the matter has continued. (The claims against the other four Defendants were resolved, with an order made, by consent, on 16 June 2010, discontinuing the claims and the cross-claims, with no order as to costs.) It is necessary, therefore, to only deal with the proceedings, so far as it relates to the first Defendant.

The first Defendant was, at all relevant times, an employee of Bell Potter Securities Pty Limited, which carried on the business of a stockbroker. The first Defendant acted as a client adviser.

The Plaintiff alleges that in about March 2006, the first Defendant arranged for a director of the Plaintiff to grant a discretionary mandate, in his favour, to conduct trades, at his discretion, on the Australian Stock Exchange, in respect of shares, on behalf, and in the interests, of clients of the Plaintiff.

It is asserted that between September 2005 and March 2008, the first Defendant executed 31 different irregular trades. These involved successful trades on behalf of the Plaintiff being rebooked to the first Defendant for his own interest, or the interests of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read French Consulting Pty Ltd v Lawson Stuart Donald and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWSC 584
Decision Date: 16 June 2011

CaseChat Overview and Summary

The matter before the court involved French Consulting Pty Ltd as the plaintiff and Lawson Stuart Donald as the first defendant. The dispute centred around a claim for unpaid invoices and interest following a contractual agreement for consulting services. The case was heard in the Local Court of New South Wales. The first defendant failed to enter an appearance or file a defence to the plaintiff's statement of claim, leading to judgment being entered in favour of the plaintiff on the issue of liability. The outstanding matter was the assessment of damages against the first defendant.

The primary legal issue the court had to determine was whether it was appropriate to proceed with the assessment of damages under the Uniform Civil Procedure Rules (UCPR) rule 29.7, given the first defendant's absence and lack of representation during the trial. The court had to balance the plaintiff's right to be heard against the procedural fairness due to the defendant. Additionally, the court examined whether it was permissible to make an order for costs against the absent defendant and if the absence warranted a stay in the proceedings.

The court held that it was appropriate to proceed with the assessment of damages claim as per UCPR rule 29.7. The absence of the first defendant did not preclude the court from hearing the matter, provided that the plaintiff was given a fair opportunity to present their case. The court found that the first defendant's failure to appear did not prejudice the plaintiff's case, as the issues of liability had already been determined. The court ordered that the first defendant pay the plaintiff's costs of the trial and further proceedings. The assessment of damages was conducted, and a final order was made in favour of the plaintiff.

Orders